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Appointments to the U.S. Supreme Court

2009: Nomination of Judge Sonia
Sotomayor: Hearings, court diversity

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According to Wikipedia:

"Sonia Maria Sotomayor (1954-) is a federal judge on the U.S. Court of Appeals for the Second Circuit."

"Sotomayor is of Puerto Rican descent and was born in the Bronx. Her father died when she was nine, and she was thereafter raised by her mother. Sotomayor graduated with an A.B., summa cum laude, from Princeton University in 1976 and received her J.D. from Yale Law School in 1979, where she was an editor at the Yale Law Journal. She was an advocate for the hiring of Latino faculty at both schools. She worked as an Assistant District Attorney in New York for five years before entering private practice in 1984. She played an active role on the boards of directors for the Puerto Rican Legal Defense and Education Fund, the State of New York Mortgage Agency, and the New York City Campaign Finance Board. Sotomayor was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush in 1991, and her nomination was confirmed in 1992."

"Sotomayor has ruled on several high-profile cases. In 1995, she issued a preliminary injunction against Major League Baseball which ended the 1994 baseball strike. Sotomayor made a ruling allowing the Wall Street Journal to publish Vince Foster's final note. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit. Her nomination was slowed by the Republican majority in the Senate, but she was eventually confirmed in 1998. On the Second Circuit, Sotomayor has heard appeals in more than 3,000 cases and has written about 380 opinions. Sotomayor has taught at the New York University School of Law and Columbia Law School." 1


On 2009-MAY-26, President Barack Obama nominated Sotomayor to be a Justice on the U.S. Supreme Court. If confirmed, she would replace Justice David Souter who is retiring from the bench. She would be the Court's 111th justice. So far, there have been no Hispanic justices and only two female justices on the court over the past two centuries. 1

President Obama said that in selecting Judge Sotomayor, he was looking for judges who had empathy. This was interpreted by many Republicans as meaning that he was looking for nominees who would promote liberal ideology on matters such as abortion access, same-sex marriage, death penalty, gun control, life imprisonment for children, animal rights, race-based quotas, illegal immigration, etc. Since she is currently 55 years of age, and there is no compulsory retirement age for Supreme Court justices, she may even hear cases initiated by transgender people and transsexuals related to gender identity.

Confirmation hearings:

On 2009-JUL-14, Judge Sonia Sotomayor's confirmation hearings began before the Senate Judiciary Committee. This is a brutal procedure, involving many hours of sometimes nasty questioning over an interval of many days.

With the retirement of Justice David Souter, a liberal, the U.S. Supreme Court currently has four conservative and three liberal members. Because their judicial philosophies clash so strongly, the justices in each group generally vote as a block. This leaves Justice Anthony Kennedy as the sole swing vote, and results in many decisions with a 5 to 4 vote. Strict constructionists If Judge Sotomayor's appointment is confirmed by the Senate, she would replace retired Justice David Souter, a liberal.

Judge Sotomayor's voting record places her as neither a liberal nor conservative. Her decisions during her 17 years as a district and appeals court judge show that her main concern is to consider each case in the light of the existing law and judicial precedence. For example:

bulletShe ruled in favor of protecting the job of a racist cop on the grounds of freedom of speech grounds (Pappas v. Giuliani, 2002).
bulletShe upheld the right of the federal government to create and enforce its "Mexico City policy" that barred the federal government from funding foreign agencies that performed abortions, or even referred women to agencies that perform abortions. (Center for Reproductive Law and Policy v. Bush, 2002). 2

If confirmed, she would replace a liberal Justice, David Souter, thus nudging the court again one step to the right.

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Impact of Judge Sotomayor's nomination on court diversity:

The main topic underlying most of the questioning was diversity of the court.

If one views the ideal court as reflecting the makeup of the country as a whole, then the court is currently very unrepresentative. A better balanced court would have:

bulletFive females and four males, with a female Chief Justice leading the Court slightly more than 50% of the time.
bulletSeven whites, 1 African American, and one Hispanic,
bulletTwo Roman Catholics, four or five non-Catholic Christians, one or two unaffiliated, and perhaps one non-Christian religious person.

Instead, there the court currently has:
bulletOnly one female.
bulletNo Hispanics,
bulletFive Roman Catholics, two Jews, two Protestants, and no religiously unaffiliated or none-Judeo-Christian justices.


bulletA woman has never been the Chief Justice.

If confirmed, Judge Sotomayor would be the first Hispanic and only the third woman to serve over the 200 year history of the Supreme Court.

Of course, accepting the principle that the Supreme Court justices' sex, race, and religion should be representative of the country as a whole, recognizes that these factors do have an influence on their decisions. Most of the attacks on Judge Sotomayor by Republicans on the Senate committee concentrated on whether she would be influence by her background. 3 A number of TV commentators have suggested that the attacks on Sotomayor by Republican senators during the confirmation process were racist in origin and were based on a desire to win points among racially bigoted voters for Republican candidates in the next election. On the other hand, Republican senators don't want to alienate Hispanic and women voters by voting against her. Hispanics constitute the fastest growing segment of the electorate and women form the majority of voters. Finally, they don't want to alienate members of the National Rifle Association who oppose her because she upheld the constitutionality of a New York gun control law.

During an often quoted speech that she gave at Berkeley in 2001, she raised the question of her cultural background. She said:

"America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores these very differences that in other contexts we laud. That tension between "the melting pot and the salad bowl" -- a recently popular metaphor used to described New York's diversity -- is being hotly debated today in national discussions about affirmative action. Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with its differences."

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. 4

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. 4,5

The highlighted sentence has been frequently cited in the media and during the confirmation hearings.

This essay continues.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Sonia Sotomayor," Wikipedia, at: http://en.wikipedia.org/
  2. Lanny Davis, "DAVIS: Sotomayor: Great judge, strict constructionist," The Washington Times, 2009-JUN-01, at: http://www.washingtontimes.com/
  3. Dahlia Lithwick, "What a waste: The Sotomayor hearings were a mass of missed opportunities for Republicans and Democrats alike," Slate, 2009-JUL-25 http://www.slate.com/
  4. This highlighted sentence, extracted from her speech, was extensively referred to during the hearings.
  5. "Sotomayor's Diversity Speech," UC Berkeley News, 2001, at: http://sweetness-light.com/

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Copyright 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2009-JUL-17
Latest update: 2009-JUL-29
Author: B.A. Robinson

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